You know, dear readers, your humble blogger, much like American’s first president, cannot tell a lie.  I wasn’t going to do a blog post for today.  I figured it’s Friday, and my beloved and infinitely patient readers probably need a break from my petty puns and hand-wringing frustration.

But then I saw the case of Smith v. Walter Claudio Salon & Spa, recently denied review by the Court of Appeal.

After applicant Smith claimed injury to various body parts, including her right shoulder, defendant hired a private investigator to do what private investigators do very well – let everyone see what the applicant is like when the applicant thinks no one can see.

So, when applicant went into a gym, the investigator purchased a “day-pass” and let the applicant work her magic for the camera.

Well, defendant wanted to have the AME to review and comment on the sub rosa footage (your humble blogger hasn’t seen the footage and can only guess what was on it to prompt such a strategy – after all, why waste the time the AME’s time having him watch a movie that confirms the subjective complaints?)

Applicant objected – this video was an invasion of applicant’s privacy!

The WCJ held that, as the video was taken in plain sight of members of the public, any one of which could have purchased a day pass to actually use the gym, there was no expectation of privacy.  Applicant sought reconsideration (which, given that this is a discovery order, should have been a petition for removal) and the WCAB treated the petition as one for removal and denied it as well.

The Court of Appeal likewise denied review.

This brings to mind a similar case, where an applicant’s contention that the sub rosa film should be excluded because the investigators violated the “no videotaping” and “no trespassing” signs of a local business.   Likewise, those contentions were rejected by the Board.

Seriously, though, folks – what expectation of privacy does an injured worker have with respect to the very issue being claimed in a case?  Couldn’t this line of reasoning be used to answer every single deposition question with “I’m not telling you that – it’s private!”  If you wanted this to stay private… why file the claim in the first place?

Have a good weekend, dear readers!